1. The evidence authorized the finding that a levy had been made on the plaintiff's property.
2. One who without probable cause causes a levy to be made on the property in the possession of and belonging to one not the defendant in fi. fa. is a trespasser.
3. Malice may be inferred from the want of probable cause or from a seizure made in a manner to indicate a wanton disregard of the rights of the true owner.
4. The verdict was not excessive.
H. B. Floyd, Jr., sued C. W. Orr and J. V. Poole for damages allegedly caused by the defendants' having a levy made against his property. C. W. Orr procured a judgment against H. B. Floyd. Orr's attorney directed a deputy sheriff to levy the execution upon the entire stock and fixtures in a grocery store at 973 Oakland Drive, S. W., Atlanta, Fulton County, Georgia. The evidence discloses that as the officer sought to levy such execution, H. B. Floyd, Jr., instructed such officer that the property sought to be levied on was not the property of the defendant in fi. fa. but was his property. The officer testified in part as follows: "I had occasion on or about the 13th day of October, 1954, to meet Mr. Floyd, Jr., there. I met him out on Oakland Avenue, I don't remember the number, at a drive-in grocery store. I had a fi. fa. to levy on that property. Mr. Poole pointed out the property to levy on. Plaintiff's Exhibit Number 3 which you show me was my instructions to make the levy. After I got out there to make the levy I was informed that the property was not the property of the defendant in fi. fa. I then called Mr. Poole and talked to Mr. Poole about it and asked him what to do. He told me to go ahead and make the levy and I made the levy. He said to let them go ahead and make bond, let them make bond for it. That was H. B. Floyd, Jr. Said let Mr. Floyd and them make bond for it. You ask me if I told him that the property belonged to H. B. Floyd, Jr., and not H. B. Floyd, Sr. I told him it belonged to that Mr. Floyd right yonder, is the one that said it was his.
"Plaintiff's Exhibit 5 which you hand me is the levy that I made.
"Plaintiff's Exhibit 7 which you hand me was on the wall and Mr. Floyd yonder took it down and showed it to me out there. That is when I called Mr. Poole. [Plaintiff's Exhibit 7 was a certificate of registration issued pursuant to the Retailer's Sales and Use Tax Act by the Georgia Commissioner of Revenue to 'Floyd's Food Store, H. B. Floyd, Jr., 973 Oakland Drive, S. W., Atlanta, Georgia'.]
"You ask me to tell the jury what happened when I made the levy. I levied on the property out there and Mr. Poole told me to close it and let them make bond. I padlocked it, put a lock on it. They gave me the keys. . .
"Plaintiff's Exhibit 8 is a true representation of the sign that I put on the window when I padlocked it. Plaintiff's Exhibit 9 is a true representation of the notice that I put on it.
"I do not know of my own knowledge how long this place stayed padlocked. They were going to make bond and I think they made bond the next day, or I don't know when it was. I know they came down and made bond. I do know that a bond was made, but I don't know the exact time. I never did see the bond and the claim that was made."
H. B. Floyd, Jr., the plaintiff in the present action, testified in part as follows: "On or about October 13, 1954, something happened to me. Two deputy sheriffs came out to the store with a levy to satisfy a judgment against my father. The plaintiff in fi. fa. at that time was C. WV. Orr. I was not indebted to Orr in any amount at that time. I have not become indebted to him in any amount since that time. I had never owed him anything.
"You ask me to explain to the jury what happened on October 13, 1954. Two deputy sheriffs came to my store to satisfy this judgment. They had a levy. I showed the deputy sheriff, among other things, my store license. I showed them bills of sale from the refrigeration appliance company from whom I purchased all of my refrigerator equipment, that is, including meat counters, produce counters, ice cream box, frozen food counters and so forth, also the eight foot walk-in cooler. I showed them bills of sale from Biro Manufacturing Company and Toledo Scale Company and Fairbanks-Morse, in fact, everything I had showing possession of the property in the store. I showed them bills of sale and invoices from meat packers and from Associated Grocers from whom I bought my canned stock; everything that I showed them, of course, being made to H. B. Floyd, Jr. My father never had a part in any dealings with the store or in the operation of the store at all. After I had showed them this evidence they then said to me, well, it looks like Mr. Poole is making a mistake here. Mr. Burdette then went to the phone and said something to somebody on the phone. He stated that he had been shown evidence that the property levied on was the property of H. B. Floyd, Jr., and not H. B. Floyd, Sr., which the levy had called for, and I, of course, couldn't hear Mr. Poole's conversation, but Mr. Burdette talked a few moments longer, hung up the phone and said, well, I'm sorry, but Mr. Poole says I have got to close you up anyhow. So at that point they herded the customers out of the store and locked us up. He asked me for the keys to the store and I gave them to him. He put the keys in his pocket, locked the store up and put the notices on both doors, there were two entrances to the store, a notice of fi. fa. and levy, or whatever it is, and then, of course, left, and so, of course, I left, too. There wasn't much I could do then. I had gone to school at the University of Georgia with Mr. Edwards here back in 1948, and so when this happened I went to the pay phone and called Mr. Edwards and asked him what I should do, and so he said, well, the first thing to do is to post bond to try to get your store opened back up again. I then filed a claim and claim bond. We filed it that afternoon, but I don't remember the legal aspects of it, but for some reason we couldn't open up until the next afternoon. They wouldn't give us the keys until the next afternoon. You were in the office at the time that that claim and bond was prepared. Perhaps the claim and bond was drafted that afternoon but not filed until the next day. I just don't remember. I don't remember whether I could get a bondsman to sign the bond that afternoon, or not, or whether I had to wait until the following day to get a bondsman. I remember who the bondsman was, but that's all."
The jury returned a verdict of $1,250 for the plaintiff. The defendants' amended motion for a new trial was denied, and they except.
J. 1. The defendants contend that the action of the officer did not amount to a levy because he did not inventory the goods and fixtures and did not make a seizure thereof and never gained actual or constructive custody or control of such property. The evidence showed otherwise. The officer made the following return: "I have this day executed the within fi. fa. by levying upon the following described property to wit: Goods in the grocery store located at 973 Oakland Dr. S.W. operated in the name of Floyd's Foods. Levied on as the property of H. B. Floyd as the defendant to satisfy a fi. fa. issued from the Superior Court of Fulton County, Ga., in favor of C. W. Orr the plaintiff in fi. fa. vs. the said H. B. Floyd, defendant in fi. fa. Property pointed out by plaintiff's attorney."
When he made the levy, the officer instructed the plaintiff that he was making a levy, took the plaintiff's keys, locked the doors to the store and placed a sign in the store window to the effect that a levy had been made. The plaintiff treated the officer's actions as a levy because he later filed a claim and bond, whereupon his keys were returned to him. These circumstances show seizure and constructive custody and a levy for the purposes of this action. See Crine v. Tifts & Co., 65 Ga. 644 (1); Crawford v. State, 19 Ga. App. 97 (2) (90 S. E. 1043).
2. Where one causes a levy to be made on the property in the possession of and belonging to a person not the defendant in fi. fa. without probable cause, he is a trespasser even though the levy was directed by his attorney ( Atlantic Co. v. Farris, 62 Ga. App. 212, 215 (1), 8 S. E. 2d 665), and if the attorney causes such levy to be made without probable cause, he is a joint trespasser with his client. Williams v. Inman, 1 Ga. App. 321 (1c) (57 S. E. 1009).
3. Malice may be inferred from the want of probable cause or if the seizure was done in a manner to indicate a wanton disregard of the rights of the true owner. Here the plaintiff displayed to the levying officer evidence of his ownership of the property and the officer then contacted the plaintiff in fi. fa.'s attorney with reference to such matter and the attorney, without further inquiry concerning the plaintiff's title to the property directed the officer to proceed with the levy. From these circumstances the jury could infer malice. Therefore, the allegations that the defendants proceeded maliciously were not without proof.
4. The verdict was not excessive. In addition to actual damage, the plaintiff prayed for, and the evidence authorized, exemplary damages. See Investment Securities Corp. v. Cole, 57 Ga. App. 97 (194 S. E. 411); s. c., 186 Ga. 809 (199 S. E. 126); Atlantic Co. v. Farris, 62 Ga. App. 212, 218, 219, supra.
The evidence clearly authorized a verdict of $1,250 for actual damages for spoilage of meat and produce and loss of profits, and for exemplary damages.
The court did not err in denying the amended motion for a new trial.
Judgment affirmed. Townsend and Nichols, JJ., concur. Townsend, J., was designated to preside in place of Quillian, J., disqualified.